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Judge denies injunction to block Lowell police promotions

By Lyle Moran, lmoran@lowellsun.com

Updated:
08/08/2014 03:48:01 PM EDT

LOWELL -- A Superior Court judge has denied a police sergeant's request for a preliminary injunction preventing the city and Police Superintendent William Taylor from promoting two other sergeants whom he alleges live in New Hampshire.

Sgt. Steven O'Neill alleged in a Superior Court complaint that Lowell police Sergeants Donald Crawford and John Cullen live out of state, in violation of state law and city ordinance, and therefore should not be eligible for promotion to lieutenant. O'Neill filed a similar complaint with the Civil Service Commission and asked it to investigate.

O'Neill had previously obtained a temporary restraining order preventing the promotion of Crawford, but was denied a request to temporarily prevent the promotion of Cullen.

The city and Police Superintendent William Taylor promoted three sergeants to lieutenant last weekend. A fourth position was left open while the city awaited the judge's ruling on the request for an injunction while O'Neill's suit went forward.

Superior Court Judge Laurence Pierce wrote in his decision that "the plaintiff has not demonstrated he will suffer irreparable harm if the City moves forward with filling the vacant lieutenant's position from the current promotional list.

"If either Crawford and/or Cullen is promoted and the (Civil Service) Commission ultimately determines that the promotion is improper due to a failure to comply with the residency requirements, there are still other candidates ahead of the plaintiff on the promotional list who would need to be bypassed in order for the plaintiff to be appointed.

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After the three promotions were made, O'Neill sits in sixth position on the list of to be promoted to lieutenant. Crawford and Cullen are tied for first place on the updated list.

In response to O'Neill's complaint, earlier this summer the Civil Service Commission ordered that a status conference and/or hearing be held in January to determine whether as of the date of the conference, Crawford is in compliance with the state law regarding residency.

Crawford lives in Hudson, N.H.

The Civil Service Commission found Cullen appears to live in Dracut and within 10 miles of Lowell, which is also required of officers, so there was no reason to further investigate his residency.

Pierce wrote that if O'Neill is "aggrieved" by a final decision by the Civil Service Commission, he can challenge the decision in court.

"It is well settled that a plaintiff must exhaust administrative remedies before seeking a preliminary injunction," Pierce wrote.

In court, the city argued its state-residency requirement is "invalid and unenforceable" and superseded by a different state law. Pierce did not address the proper application of the state residency law or city ordinance in his decision.

Ryan Sullivan, O'Neill's attorney, said he and his client were disappointed with the judge's decision but they respect it.

"From this point, we are looking forward to a favorable result from the Civil Service Commission whose made it clear that Massachusetts residency is required and we are hopeful the city will enforce its ordinance even though the Superior Court has not ordered them to do so," Sullivan said.

Sullivan said he and his client will address what happens with the suit O'Neill filed in Superior Court after the Civil Service Commission process is finalized.

City Manager Kevin Murphy said: "I think the city made a reasoned argument to the judge. The judge understood the law and applied it correctly in this matter."

Murphy said he planned to speak to Taylor and the Law Department about how to proceed with the one lieutenant position still open.

Andrew Gambaccini, Crawford's attorney, also praised the judge's decision, which was made after he gave all parties one week to file supplemental briefs.

"Obviously, Sergeant Crawford is pleased with the favorable decision denying the request for an injunction and pleased that the Judge was able to rule on the matter so quickly after the supplemental briefs were filed with the Court," Gambaccini wrote in a prepared statement.

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